The amendment closes this loophole while fully maintaining the rights of the accused. The accused may still appeal the decision of the lower court to the higher court for the reasons listed in BCO 42-3. But the higher court can only hear the matter after the lower court, the proper court of jurisdiction, has ruled on it. This amendment maintains the rights of the lower court to properly exercise its authority and shepherd its people. It is a common-sense fix to a loophole that can be abused.
The 46th General Assembly of the PCA voted to answer Overture 23, to amend BCO 35-11 “to not automatically disqualify a member of a court who is a witness” in the affirmative as amended by a vote of 1036-59-45 (roughly a 90% majority of commissioners). This overture had been previously answered in the affirmative by the Overtures Committee by a vote of 95-7-1 with little debate. Here are three reasons for PCA Presbyteries to vote YES on the amendment to BCO 35-11.
First, ecclesiastical judicial courts are not civil judicial courts. The layman’s understanding of the civil court system is predicated on the presumption of innocence. That is not the case in the PCA’s judicial courts. The court cannot institute process unless there is a “strong presumption of the guilt of the party involved” (BCO 31-2).
Additionally, the analogy of a civil trial with a judge serving as witness and jury does not fit. The civil judge on the bench is a dispassionate determiner of the fact of law. He has no obligation to shepherd the soul of the accused. He is likely wholly uninvolved in the life of the accused. In fact, any involvement of the judge in the life of the accused, whatsoever, could be grounds for recusal. The elder, however, bears a divine obligation to the accused. He is a shepherd of their souls. He is obligated before God to render judgment. So this analogy is a straw-man argument.
Everyone agrees that an American judge must recuse himself if he were to serve as a witness in a civil trial. But American civil trials are not being discussed here. The assumption that elders, serving as judges in an original-jurisdiction PCA trial, must function in the same manner as an American judge or jury is simply wrong. Elders in judicial trials are not like judges or juries in civil trials. Analogies to this effect are particularly helpful in determining whether it would or would not be appropriate for an elder who gives testimony to be disqualified from sitting in judgment. Ecclesiastical judicial courts are not civil judicial courts.
Second, the historical precedent for this amendment predates the current wording of BCO 35-11. BCO 35-11 currently reads:
A member of the court who has given testimony in a case becomes disqualified for sitting as a judge if either party makes objection.
This wording goes back the 1925 BCO of the PCUS. But the prior antecedents to the BCO text of 35-11 did NOT automatically disqualify a member of a court who was called as a witness, for example:
“A member of the judicatory may be called upon to bear testimony in a case which comes before it. He shall be qualified as other witnesses are; and, after having given his testimony, he may immediately resume his seat as a member of the judicatory” (PCUSA, 1859 draft, VII-14).
“A member of the court shall not be disqualified from sitting as a judge by having given testimony in the case” (PCUS 1869 draft, IX-11 and PCUS 1867 draft, IX-11).
“A member of the court shall not be disqualified for sitting as a judge by having given testimony in the case” (PCUS 1879, IX-11).
The 1925 BCO of the PCUS made a complete reversal in the intent of the previous versions. The amendment that was affirmed by the 46th General Assembly simply reverts the BCO back to the original language. Historical precedent supports this amendment.
Third, this amendment is a common-sense closure of an easily abused loophole in the PCA’s judicial system. Our system does disqualify certain elders from sitting as judges in trials. This will not be changed by the amendment. A member of the court who represents the accused is not allowed to sit in judgment (BCO 32-19). This amendment would disqualify an elder who serves as prosecutor from sitting in judgment. This amendment also retains the right of the court to decide whether an elder should be disqualified from sitting in judgment if there is some insurmountable conflict of interest. It is possible that an elder should recuse himself or be recused by the court. And because of the appeals process, the court of original jurisdiction would be wise to recuse an elder if his impartiality is in doubt.
But what this amendment does not do is assume that an elder is unfit to fulfill his obligations as an elder simply because he gave testimony in a case. The default assumption should not be that an elder would be biased. The default assumption should be that elders who have taken vows would “detest dishonest scales” (Prov. 11:1). The default assumption should be that an elder will “strive for the purity, peace, unity and edification of the Church.” If the court does not believe this to be the case, though, the court can (and should) disqualify that elder from sitting in judgment. But that should be the determination of the court and not the accused.
What this amendment prevents is the abuse of a loophole in the system. BCO 35-11 as it is currently written allows for the automatic disqualification of elders for specious reasons. There is no limitation on whom a party can call as a witness, beyond that the accused shall not be compelled to testify (BCO 35-1). A court that is composed of a small number of elders could be rendered incapable of fulfilling their obligations as elders, viz. to shepherd the members of the congregation by sitting in judgment in a judicial matter, if many or all of elders are called as witnesses to give testimony. This has happened. The accused have attempted to by-pass the judgment of the proper court of jurisdiction (BCO 33-1) by calling all the members of the court as witnesses and then objecting to their sitting in judgment over them. That their testimony as witnesses was irrelevant to the case did not matter. They were called simply and solely because it could disqualify them. This is an abuse of our system. This is the manipulation of a loophole in order to prevent an elder from exercising proper authority. The amendment closes this loophole while fully maintaining the rights of the accused. The accused may still appeal the decision of the lower court to the higher court for the reasons listed in BCO 42-3. But the higher court can only hear the matter after the lower court, the proper court of jurisdiction, has ruled on it. This amendment maintains the rights of the lower court to properly exercise its authority and shepherd its people. It is a common-sense fix to a loophole that can be abused.
The proposed amendment, which was overwhelmingly approved by the Overtures Committee and the Assembly protects the jurisdiction of the lower court, preserves the rights of the accused, returns the BCO to its historical antecedents, and closes a dangerous loophole.
Presbyteries should vote FOR approving the BCO 35-11 amendment.
Donny Friederichsen is a minister in the Presbyterian Church in America and is Pastor of Covenant Presbyterian Church in Short Hills, NJ.